Nothing renders the crime of high treason more arbitrary
than declaring people guilty of it for indiscreet
speeches. Speech is so subject to interpretation; there is so
great a difference between indiscretion and malice; and
frequently so little is there of the latter in the freedom of
expression, that the law can hardly subject people to a capital
punishment for words unless it expressly declares what
words they are.

Words do not constitute an overt act; they remain only
in idea. When considered by themselves, they have generally
no determinate signification; for this depends on the
tone in which they are uttered. It often happens that in
repeating the same words they have not the same meaning;
this depends on their connection with other things,
and sometimes more is signified by silence than by any
expression whatever. Since there can be nothing so equivocal
and ambiguous as all this, how is it possible to convert
it into a crime of high treason? Wherever this law is established,
there is an end not only of liberty, but even of its
very shadow.

In the manifesto of the late Czarina against the family
of the D'Olgoruckys, one of those princes is condemned to
death for having uttered some indecent words concerning
her person: another, for having maliciously interpreted
her imperial laws, and for having offended her sacred
person by disrespectful expressions.

Not that I pretend to diminish the just indignation of
the public against those who presume to stain the glory of
their sovereign; what I mean is, that if despotic princes are
willing to moderate their power, a milder chastisement
would be more proper on those occasions than the charge
of high treason--a thing always terrible even to innocence
itself.

Overt acts do not happen every day; they are exposed
to the eye of the public; and a false charge with regard to
matters of fact may be easily detected. Words carried into
action assume the nature of that action. Thus a man who
goes into a public market-place to incite the subject to revolt
incurs the guilt of high treason, because the words are
joined to the action, and partake of its nature. It is not the
words that are punished, but an action in which words are
employed. They do not become criminal, but when they
are annexed to a criminal action: everything is confounded
if words are construed into a capital crime, instead
of considering them only as a mark of that crime.

The Emperors Theodosius, Arcadius, and Honorius
wrote thus to Rufinus, who was praefectus praetorio:
"Though a man should happen to speak amiss of our person
or government, we do not intend to punish him: if he
has spoken through levity, we must despise him; if
through folly, we must pity him; and if he wrongs us, we
must forgive him. Therefore, leaving things as they are,
you are to inform us accordingly, that we may be able to
judge of words by persons, and that we may duly consider
whether we ought to punish or overlook them."

13.--Of Writings

In writings there is something more permanent than in
words, but when they are in no way preparative to high
treason they cannot amount to that charge.

And yet Augustus and Tiberius subjected satirical writers
to the same punishment as for having violated the law
of majesty. Augustus, because of some libels that had been
written against persons of the first quality; Tiberius, because
of those which he suspected to have been written
against himself. Nothing was more fatal to Roman liberty.
Cremutius Cordus was accused of having called Cassius in
his annals the last of the Romans.

Satirical writings are hardly known in despotic governments,
where dejection of mind on the one hand, and ignorance
on the other, afford neither abilities nor will to
write. In democracies they are not hindered, for the very
same reason which causes them to be prohibited in monarchies;
being generally levelled against men of power and
authority, they flatter the malignancy of the people, who
are the governing party. In monarchies they are forbidden,
but rather as a subject of civil animadversion than as
a capital crime. They may amuse the general malevolence,
please the malcontents, diminish the envy against public
employments, give the people patience to suffer, and
make them laugh at their sufferings.

But no government is so averse to satirical writings as
the aristocratic. There the magistrates are petty sovereigns,
but not great enough to despise affronts. If in a
monarchy a satirical stroke is designed against the prince,
he is placed on such an eminence that it does not reach
him; but an aristocratic lord is pierced to the very heart.
Hence the decemvirs, who formed an aristocracy, punished
satirical writings with death.

The Founders' Constitution
Volume 5, Amendment I (Speech and Press), Document 3http://press-pubs.uchicago.edu/founders/documents/amendI_speechs3.htmlThe University of Chicago Press